(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.
  (1) Mental health services--The assessment, diagnosis, treatment, or therapy in a professional relationship to assist an individual or group in:
    (A) alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction;
    (B) understanding conscious or subconscious motivations;
    (C) resolving emotional, attitudinal, or relationship conflicts; or
    (D) modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning.
  (2) Sexual contact--
    (A) deviate sexual intercourse as defined by Texas Penal Code, §21.01;
    (B) sexual contact as defined by Texas Penal Code, §21.01;
    (C) sexual intercourse as defined by Texas Penal Code, §21.01;
    (D) requests by a licensee for conduct described by subparagraph (A), (B), or (C) of this paragraph.
  (3) Sexual exploitation--A pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a client's sexual history within standard accepted practice.
  (4) Therapeutic deception--A representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client's or former client's therapy.
(b) A licensee may not engage in sexual contact with a person who is:
  (1) a client or a former client;
  (2) a supervisee, an LMFT Associate, or an intern for whom the licensee has administrative or clinical responsibility;
  (3) a student in a marriage and family therapy graduate program in which the licensee offers professional or educational services; or
  (4) a clinical supervisor or supervisee of the licensee.
(c) A licensee may not provide therapeutic services to a person with whom the licensee has had a sexual relationship.
(d) A licensee may not practice therapeutic deception or sexual exploitation.
(e) It is not a defense under subsections (b) - (d) of this section, if the sexual contact, sexual exploitation, or therapeutic deception with the person occurred:
  (1) with the consent of the person;
  (2) outside the therapy, treatment or supervision sessions, classes, or work hours of the person; or
  (3) off the premises regularly used by the licensee for the therapy, treatment or supervision sessions, classes, or work hours of the person.
(f) The following, when done in the context of professional services, is considered sexual exploitation.
  (1) Sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature and:
    (A) is offensive or creates a hostile environment, and the licensee knows or is told this; or
    (B) is sufficiently severe or intense to be abusive to a reasonable person in the context.
  (2) Any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual.
  (3) Inappropriate sexual comments about or to a person, including making sexual comments about a person's body.
  (4) Making sexually demeaning comments to or about an individual's sexual orientation.
  (5) Making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in therapy or treatment.
  (6) Requesting details of sexual history or sexual likes and dislikes when not necessary for therapy or treatment of the individual.
  (7) Initiating conversation regarding the sexual likes and dislikes when not necessary for therapy or treatment of the individual.
  (8) Kissing or fondling.
  (9) Making a request for non-professional social contact.
  (10) Any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature.
  (11) Any intentional exposure of genitals, anus, or breasts.
  (12) Encouraging a client, student, supervisee, intern, LMFT Associate, or former client to masturbate in the presence of the licensee.
  (13) Masturbation by the licensee when a client, student, supervisee, intern, LMFT Associate, or former client is present.
(g) Examples of sexual contact includes those activities and behaviors described in Texas Penal Code, §21.01.

Source Note: The provisions of this §801.45 adopted to be effective October 5, 2020, 45 TexReg 7024